Weekly Notes: legal news from ICLR – 15 December 2014

The week’s selection of legal stories from home and abroad includes a simian entitlement to human rights, a juror’s entitlement to a hot lunch, and the public’s right to government information. Plus the Google tax and a veiled threat.

A perfect day, via A View From the North blog, chaos and confusion in the criminal courts recounted.

Any old laws?

Oldest surviving statute at risk of being repealed

The Law Commission’s Statute Law Repeals (SLR) team has been looking at some apparently obsolete bits of legislation to see if they can be removed from the statute book, reports the BBC.

Among the provisions being targeted are some chapters, or sections, of the Statute of Marlborough, passed in 1267 during the reign of Henry III, and predating even the enactment as legislation (in 1297) of the extant provisions of Magna Carta. The Statute of Marlborough was one of the earliest Acts of Parliament, and is the oldest still partially in force. Only four of its chapters remain in force, and two of them, chapters 4 and 15, dealing with the common law remedy of distraint or distress, have been superseded by parts of the Tribunals, Courts and Enforcement Act 2007 that came into force in March, abolishing the remedy of distress and replacing it with a statutory procedure for debt recovery. Chapters 1 and 23 of the 1267 Statute would remain in force, however.

Another almost as ancient statute targeted for repeal is the Statutes of the Exchequer 1322, which also deals with distress, and has likewise been rendered obsolete by the 2007 Act which has recently come into force. The question whether these and other obsolete bits of legislation, including provisions from the Married Women’s Property Act 1882 and the Merchant Shipping Act 1906, should be repealed has been made the subject of consultation by the Law Commission.

Luncheons at Law

Trial collapses over lack of hot food for jurors

A trial in Northern Ireland had to be halted and the jury discharged after it emerged that three jurors had sneaked off to get fish and chips for their lunch. This was in breach of rules (the Juries (NI) Order 1996) requiring jurors to be supervised or accompanied by jury keepers (currently supplied by G4S) and only permitting separation of the jury with the trial judge’s permission. It seems that when the jurors left the court they did so with the knowledge and, they believed, permission of court staff.

But why did they need to go at all? The answer is in para 10 of the judgment of Treacy J sitting in the Crown Court for Northern Ireland, in R v McClenaghan[2014] NICC 20:

[10] The genesis of the problem appears to have been a change in policy in relation to the provision of food for juries. Formerly Laganside juries had been provided with hot meals but as a cost saving measure it was decided that from September 2014 they would now be provided only with cold sandwiches. There was also no provision in the jury room by way for example of a microwave for jurors to warm food if they chose to bring it in. The Court and the parties were completely unaware that there was an issue about something as basic as proper food for the jury. As far as the Court and the parties are concerned the matter came to a head on Tuesday 23 September 2014 when the Crown Office Manager drew the issue of jury separation to the attention of the Court.

The consequence of this cost-saving measure was the cost-wasting outcome of an order discharging the jury. But it’s not just jurors who are suffering during their lunch break these days.

Short-changing the short adjournment

Once they enjoyed roast beef served from silver salvers, always accompanied by the finest claret. In these days of austerity however, lunch for Her Majesty’s judges is more likely to be a pork pie in a plastic box — and they even have to wash up afterwards.

In a move to shave £1.3 million from the courts budget, the 600-plus circuit judges have had to make their own catering arrangements, which in some cases has meant none at all.

The article goes on to catalogue the woes of circuit and district judges, sitting in courts whose catering facilities are being converted into more courtrooms, leaving judges with little more than a microwave and a sink to do the washing up. All this following a decision not to renew or replace catering contracts.

However, the article provoked some lively comments, including one from retired judge Mary Jane Mowat, which I hope she will not mind my quoting in full, since it reveals quite a lot about the working day, including the working lunch, of the front line judiciary:

May I paint the true picture please? The criminal circuit judge’s working day (my experience) will probably start at about 8am, whether at home before travelling up to an hour to court, or after having done so. She will be reading the papers that only came in late last night or that morning for the new 3 week trial, or the dozen or so applications and sentences listed that day. She will be on the bench, on public display, from 10 or 10-30, controlling the court, making and delivering difficult decisions, taking notes of evidence, summing up after a trial, till about 1 when there is a lunch break till 2 before the process begins again, till about 4-30 or sometimes as late as 6 on a busy sentencing day The concentration and energy demanded for these tasks is considerable. The lunch break is an invaluable time not only for replenishing energy, but for discussing and debating difficult problems with colleagues. It is unfortunate if it has to be utilsed for self catering. The idea has got about that judges were fed for free. Not true. Lunches were expensive for what they were. If they were subsidised, then a lot of money was squandered on a rotten contract with Compass whose staff, I happen to know, were paid a pittance for very hard work. The judge’s day does not end with the court day. Many evenings and indeed weekend hours will be spent preparing summings up and reading legal updates. Once again the critics betray a sad ignorance of how the system works and the demands put on the judiciary..As far as I can see it is even worse for the civil circuit and district judges who have a mass of paperwork to conquer and, now endless hearings with litigants in person who have been denied legal aid. So the withdrawal of catering facilities is more than a minor inconvenience. It is yet another impediment to the smooth administration of justice.

Animal rights

Chimpanzee denied human rights claimed for him in New York appeal court

A facetiously selected illustration: see footnote.

According to The Independent, Steven Wise, the president of animal advocacy group the Nonhuman Rights Project (NhRP), filed a petition claiming that Tommy, a 40ish year-old chimp, was so similar to humans that he and his species deserved basic human rights. The report continued:

Tommy, who lives alone in an enclosure on a caravan park in Gloversville, New York, suffered conditions comparable to a person in solitary confinement, Mr Wise told the court in Albany. Citing a legal mechanism* once used on behalf of slaves, he argued that Tommy was unlawfully imprisoned and ought to be released to live at a chimp sanctuary in Florida.

The petition (for a *writ of habeas corpus) was rejected at first instance, in the Supreme Court of New York (Justice J Sise) on 18 December 2013, and the NhRP appealed. Dismissing that appeal on 4 December 2014, Justice Karen Peters (sitting with Justices Lahtinen, Garry, Rose and Lynch) wrote:

“So far as legal theory is concerned, a person is any being whom the law regards as capable of rights and duties…

Needless to say, unlike human beings, chimpanzees cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions. In our view, it is this incapability to bear any legal responsibilities and societal duties that renders it inappropriate to confer upon chimpanzees the legal rights – such as the fundamental right to liberty protected by the writ of habeas corpus – that have been afforded to human beings.”

About the facetious image. This is taken from a Malaysian blog called LoyarBurok® which describes itself as:

a blawg owned and maintained by Liberal Banter Sdn Bhd (‘LB’). LB is led in its quest for global domination by an ingenious simian General Chief Editor named Lord Bobo Barnabus, The Wonder Typewriting Monkey, who exists solely in cyberspace.

All right, Gov.uk?

No, say BIALL members, who give new all-in-one portal the thumbs down

A lively debate has been raging (politely – we are talking librarians and information officers here) on LinkedIn over the ease of use (if any) of the new government information portal, Gov.uk – https://www.gov.uk

The site bills itself as “The best place to find government services and information. Simpler, clearer, faster” – a description with which the members of the British and Irish Association of Law Librarians who have been discussing it take issue.

The new portal will eventually encompass all the individual websites of government departments, and will become the information hub for official news, advice, guidance and publications. The trouble is, it appears to have been optimised for mobile devices, so there is a limited amount of information on any one page, the writing is primary school sized, and the navigational links are not particularly granular.

Among the comments made so far, it’s been described as “crude” and “dumbed down” and people have said information is now much harder to find. Also, links are not retained or maintained, which makes it difficult to track and link to content. All this really ought to be basic stuff to get right.

Though it’s not yet part of the main Gov.uk portal, we’ve been using (and have complained about) the “new” Judiciary website, retermed the “Courts and Tribunals Judiciary”, or http://www.judiciary.gov.uk. Trying to find judges’ speeches is harder because they’re not listed in any menu, as they used to be, and don’t come up in a particularly user-friendly (or targeted) way in searches. You have to navigate via “Announcements” to find a drop down filter for “Type”. At least there is still a separate menu item for Judgments.

I view the impending absorbtion of this into the main Gov.uk portal with considerable alarm. Apart from anything else, I think the judiciary should have its independedence from the executive clearly endorsed by having an independent website, as the Supreme Court already does (without even the suffix “.gov.uk” in its URL): https://www.supremecourt.uk

Secondly, I do not think it appropriate for the repository of judgments on the judiciary website (however incomplete and sporadic in coverage) to be under the control of the government information portal. What if a judgment critical of the government were, somehow, to become unavailable? It would be too easy to foment conspiracy theories – as happens when other files go mysteriously missing (nearly always, I’m sure, by reason of nothing more sinister than good old incompetence, mismanagement, or computer failure).

This underlines, I need hardly add, the importance of having something like BAILII, a repository of judgments recognised and supported by the judiciary, and almost wholly independent of government funding (the major sponsors are listed on BAILII here). It also (though we are more selective in what we report) underlines the importance of independent publishers such as ICLR having access to, and reporting on, the most important and legally significant cases. ICLR was established by, and for, the legal professions, and supports the administration of justice and legal education: hence its charitable status. But the commercial publishers of law reports also have a role to play, even if they serve other interests (such as monetising content for the benefit of shareholders) – in that they maintain the independence of their store of information from government control. So it’s not just the press that needs to be free.

The Gov.uk portal is free in the other sense, of course. There is no paywall. But we need to be convinced it is also properly and fully transparent, in making information available in the simple, clear and fast way it promises (but may not yet have delivered).

SEE ALSO: on the FOIman (information about freedom of information) blog, Finding information on gov.uk and ico.org.uk, in which “FOIMan reviews the Information Commissioner’s latest website revamp via a grumble about gov.uk.”

Piercing the veil of in-court oration

Baroness Hale says women in veils should remove them when giving evidence in court

Baroness Hale, deputy president of the Supreme Court, was reported by the Evening Standard as saying “ways have got to be found” to ensure that face coverings are removed for key parts of court hearings and added that there “must come a point” at which judges insist veils are lifted. She said that seeing faces could be “important” and “necessary” when women were testifying and on other occasions, such as when the issue of identity or recognition was at stake.

Lady Hale said the need for a firm approach had been illustrated by one family law case in which she had detected that a mother was lying by seeing her facial expressions after the woman was required to remove her head covering.

The issue cropped up in a criminal case when a defendant, Rebekah Dawson, refused to remove her niqab when testifying.The judge in the case told Dawson — later jailed for six months after pleading guilty — she would have to show her face if giving evidence, which she declined to do. See, on this blog, Further reflections on the niqab ruling

The Lord Chief Justice, Lord Thomas of Cwmgiedd, has vowed to issue guidance on the matter, but this is still awaited.

Parish news

Sir Keir Starmer QC, the former Director of Public Prosecutions, has been selected to stand for election as an MP for the safe Labour seat of Holborn and St Pancras, in London. He is a member of Doughty St chambers.

Murder in the Cathedral (in Temple Church actually)

An influential religious leader is cruelly cut down in the bosom of his temple; the forces of ‘law and order’ are galvanised into repression; a dangerous cult of martyrdom rises in reaction…

The year is 1170, the place Canterbury, the martyr a politically astute Archbishop: Thomas a Becket. King Henry’s words are folklore now; then they unleashed a slaughter which nearly unseated the monarch and shook the nation. But who, asks T.S. Eliot, is this man Becket and why does he choose the path of death? In a world of suicide attacks and religious wars Eliot’s play is painfully resonant and, in its 80th anniversary year, demands fresh analysis.

This brand new investigation stars Philip Franks, is directed by Joe Harmston, and is the product of a close collaboration with Middle Temple, Inner Temple and Temple Church. For more details, Box Office 020 7427 5641 www.templemusic.org

Law (and injustice) around the world

Burkina Faso

African human rights court rules against imprisonment for defamation

In its first judgment on free speech, the African Court on Human and Peoples’ Rights has ruled that imprisonment for defamation violates the right to freedom of expression while criminal defamation laws should only be used in restricted circumstances. The Court ordered Burkina Faso to change its criminal defamation laws.

China

Puns banned

New rules ban the use of wordplay in the press, broadcasts, and advertisements. According to Quartz, the new rules are intended to uphold the sanctity of the Chinese language, but the real reason is likely to be the recent growth in use of subversive wordplay to poke fun at leaders and institutions. Quartz explains with examples, including this one:

Which country would you say is entering a “marijuana era”? Maybe Uruguay, which recently legalized the drug? Perhaps the United States, where the state of Colorado is offering holiday discounts on legal weed.
In fact, the “marijuana era” is happening in China. That’s thanks to a clever pun that pokes fun at the country’s leader, Xi Jinping, and has been circulating around China’s web. The pun subverts the cult of personality growing around Xi and first lady Peng Liyuan, who is also a well-known singer.
This is how the pun developed: At a celebration earlier this year of Teachers’ Day in China, Xi picked up the term of affection “Daddy Xi.” Last week, an ode to the president and first lady—”Daddy Xi loves Mama Peng“—extended the filial reverence to Peng. The first character in “daddy” is 大, pronounced “da.” The first in “mama” is 媽, pronounced “ma.” Combining those two, you get “dama.” That is a homonym for 大麻, “marijuana.”
“And so we enter the Dama [marijuana] Era,” one internet user quipped on Weibo (link in Chinese).

Gambia

Diplomats dealt in tax-free tobacco

Gambian diplomats who sold tax-free tobacco from their London embassy have been found guilty of cheating the UK taxpayer out of almost £4.8m, according to the BBC.

Deputy head of the Gambian Diplomatic Mission in Kensington, Yusupha Bojang, and his colleagues ordered 29 tonnes of rolling tobacco over three years. They imported more than half a million 50g pouches at tax-free rates for personal or High Commission use, but then sold it on. They were found guilty of conspiracy to cheat the Inland Revenue .

Hong Kong

Pro-democracy protests ended after 11 weeks

The last yellow umbrella, figuratively speaking, has been cleared from the sites at Admiralty, Mong Kok and elsewhere in Hong Kong where pro-democracy demonstrators (and those seeking simply to compel adherence to the Basic Law) had occupied the streets to draw attention to the failure to allow genuine candidates to stand for election to lead the Legislative Council.

They were protesting a decision by the mainland ruling Communist Party not to permit free and fair elections in Hong Kong, despite an undertaking in the Basic Law and the handover agreement by which Hong Kong was ceded back to China in 1997. Instead, the CP wants to impose its own candidates in what would amount to a travesty of democracy.

The so-called Umbrella Protest also sought the removal from the post of Chief Executive of C Y Leung, whose stance in response to the protests has been uncompromisingly negative.

At various times talks were promised, cancelled, then held but proved inconclusive.

The whole thing was covered daily by the South China Morning Post, which is now reporting a follow-up plan by students in the form of a “non-co-operation movement”.

NB One thing should be made clear: this is not an “Occupy” movement in the same sense as those which took place in London (St Pauls and Finsbury Sq), New York (Wall St, or possibly Battery Pk) and elsewhere. These people are not anti-capitalists or anarchists or Wikileakers or flat-earthers. They just want the rule of law and a working democracy.

South Africa

Dewani trial collapses

The trial for the murder of his wife (whose assassination he was accused of arranging) of Shrien Dewani has ended with the bench declaring, in essence, no case to answer and declaring an acquittal. Three people have already admitted to their involvement in the murder, during their honeymoon, of Dewani’s wife, Anni, in 2010. But the case for the prosecution of her husband collapsed by reason of the shambolic state of the evidence against him and some of the witnesses relied upon to supply it.

Spain

Google tax – unintended (?) consequence

Google News is shutting down in Spain, in direct response to a new law requiring newspapers and other publishers to charge news aggregators who include snippets of original content with links on their site. The publishers have no opt-out (as they did when Germany passed a similar law) so it’s all or nothing – and Google decided it should be nothing. The compulsory charge became known as the “google tax” although it is chargeable to any news aggregator, and presumably also anyone writing a news roundup on, say, the blog of a legal information portal. Er…

Google defended its action in closing down the site, which looks a bit like a monopolist throwing its weight around (or “exploiting a dominant position”), by saying it displays no advertising on Google News and does not make money out of providing useful links to content on (and therefore giving exposure and publicity to) the original publishers’ websites. That seems reasonable. However, there must come a point where the snippet quoted on the aggregator is so complete in itself that the reader does not bother to …

Okay, guilty as charged*. Now go direct to the sources for this story: